Day 2 at the Court: Well, that Could Have Gone Better

March 27, 2012

My first impression from day two at the Supreme Court: I was more confident yesterday than I am today. With the caveat that I know health policy a lot better than I know law, I can still imagine the justices upholding the individual mandate. But, at this point, I can just as easily imagine them striking it down.

Tuesday's hearing was energized and contentious, from start to finish. But while the justices hammered lawyers from both sides with difficult questions, Solicitor General Don Verrilli seemed to struggle more than Paul Clement, attorney for the states. And although the liberal justices were able, more or less, to carry the case on their own, there are only four of them – and the conservatives number five.

Two of those conservatives, Samuel Alito and Antonin Scalia, seemed openly hostile to the government’s arguments. The justices don’t always tip their hands and, so, it’s impossible to know what they really are thinking. But they certainly seemed prepared to strike down the individual mandate, on the grounds that it unfairly compels individuals into a form of commerce, buying insurance, they would not do on their own.

Alito seemed particularly concerned that, because of the mandate, young, healthy people would have to pay more for their insurance, because they would effectively be subsidizing the sick. In a direct response to the government’s argument that the law’s minimum coverage requirement is “necessary and proper,” Scalia responded that it was clearly necessary but not proper – and that government could avoid the problems of the insurance market by simply not requiring insurance companies to cover people regardless of pre-existing condition, as the law will do.

At various points the liberal justices made counter-arguments through their own questions – that cross-subsidy of sick to healthy is the whole point of programs like Social Security (Ruth Bader Ginsburg), that everybody gets sick eventually (Elena Kagan), that the failures of the insurance market are a clearly national problem empowering the federal government to use its powers (Stephen Breyer), and that functionally the mandate is no different than a clearly constitutional tax credit (Sonia Sotomayor).

They also got Clement to admit that a requirement that people buy insurance when they show up at the hospital would be constitutional, prompting Kagan (I think it was her) to question why it was unconstitutional to require purchase beforehand. They also got the side challenging the law to admit that, short of a government takeover of health insurance, the government might have little ability to make insurance universal while still preserving the private insurance industry.

As readers know, I find those arguments persuasive. If Alito or Scalia felt similarly, they did not indicate it.

The question at this point is what John Roberts, the chief justice, and Anthony Kennedy will do. They sent more ambiguous signals. Kennedy, near the end, seemed interested in finding some middle constitutional ground that would justify the mandate but not other government regulations.

the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

Roberts seemed to grasp the dynamics of the health insurance market, picking up on the liberal justices’ line that everybody is, by definition, in the health care market because everybody gets sick. That argument alone could carry the day – and, of course, there's the possibility he'd vote to uphold the law based on the government's taxing power, a possibility he hinted at Monday.

But both Roberts and Kennedy questioned Verrilli more aggressively, invoking arguments that came from the right – including, yes, references to broccoli. Over and over again, they and the other conservatives asked for a limiting principle – a reason to think approving the mandate woudn’t lead to unlimited federal power. Verrilli struggled to answer the question and, at times, seemed unsure of whether to call upon the Commerce Clause or Necessary and Proper Clause as justification. (In its briefs, the government invokes both, for separate reasons – more on that soon.)

Reaction in the press room, although mixed, seemed more negative than reaction elsewhere. My canvassing of legal experts found pretty mixed opinions on how the case will turn out. (Walter Dellinger, the Duke law professor who supports the law, pointed out that the plaintiffs effectively made it clear that the only way to create national health insurance would be through a single-payer system, an idea most conservatives detest.)

Truth is, it's impossible to know what the justices are really thinking – and to what extent the justices are asking questions to satisfy their own doubts before going in the other direction.

One other note: As somebody who knows the policy issues, the hearing was incredibly frustrating to watch. Both judges and lawyers, on both sides, seemed not to understand the specifics of the health care market and why it would (or would not, depending on your legal philosophy) make the mandate constitutional. But, of course, that's a pretty good argument for why judges should leave legislative judgment to the legislative branch.

That was Verrilli's point at the end, during final summation: That, by striking down the mandate, the judiciary would be committing an aggressive act of judicial review, stepping into matters traditionally reserved for the democratically elected Congress and president. I happen to think he's right about that. Whether five justices of the court agree, alas, is pretty unclear at this point.